Curlee et al v. Birmingham Board of Education

Filing 27

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 6/28/13. (SAC )

FILED
2013 Jun-28 PM 03:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LORETTA CURLEE, KIMBERLY A.
BROWN, CAROLYN DAVIS, and
CAROLINE D. WYATT
Plaintiffs,
v.
BIRMINGHAM BOARD OF
EDUCATION,
Defendant

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CV-11-BE-04052-S

MEMORANDUM OPINION
This matter comes before the court on Defendant Birmingham Board of Education’s
Motion for Summary Judgment. (Doc. 14). Plaintiffs Loretta Curlee, Kimberly A. Brown,
Carolyn Davis, and Caroline D. Wyatt, four African American payroll clerks employed by the
Board, allege that the Board discriminated against them because of their race by paying them a
lower salary than a similarly situated Caucasian payroll clerk. The Board argues that the
Plaintiffs have failed to establish a prima facie case of discriminatory compensation or a
cognizable § 1981 claim via § 1983, and thus, the court should grant summary judgment in its
favor. Because the court finds that no genuine issue of material fact exists and because the
Plaintiffs failed to make a prima facie showing of discriminatory compensation, the court will
GRANT the Board’s motion for summary judgment and DISMISS the case WITH PREJUDICE.

I.

STATEMENT OF FACTS
A.

Factual Background
1.

Individual Plaintiffs

The Board currently employs all four of the Plaintiffs as payroll clerks. The Board hired
Plaintiff Loretta Curlee as a secretary in September of 1998. Ms. Curlee has an Associate in
Applied Science degree from Booker T. Washington Junior College. Prior to her employment
with the Board, Ms.Curlee worked in the private sector as a typist, personnel clerk, and secretary.
In August 2004, the Board promoted Ms. Curlee to payroll clerk, and at the time of her
promotion, Mrs. Curlee did not have any questions or complaints about her placement on the
Board’s salary schedule.
The Board hired Plaintiff Caroline D. Wyatt in August 2004 as a payroll clerk. Ms. Wyatt
has a Bachelor of Science from Faulkner University. Prior to her employment with the Board,
Ms. Curlee worked in the private sector as a cashier, office worker, and administrative assistant
with payroll duties and also worked for the U.S. Postal Service as a mail carrier. When she was
hired by the Board, Ms. Wyatt asked Adrian Mitchell, a Board Human Resources supervisor,
whether her past working experience would be considered in her salary. Ms. Wyatt testified that
Mitchell told her the Board did not grant credit for working at a corporation.
The Board hired Plaintiff Kimberly A. Brown in September 1988 as an intermediate
clerk. Ms. Brown has a Bachelor of Science in Business Administration from Auburn University
in Montgomery. Prior to her employment with the Board, Ms. Brown worked as a customer
service representative and an office manager in the private sector. In August 1997, Ms. Brown
took a two year leave of absence and during that time worked for Cornerstone Schools as an
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office manager and for Our Lady of Fatima Catholic School as a kindergarten teacher. Ms.
Brown disputes that she was paid for her work as a teacher at Our Lady of Fatima. Ms. Brown
returned to the Board as an intermediate clerk in August 1999, and was promoted to senior
secretary in April 2000. In August 2003, Ms. Brown requested and was granted a transfer to a
payroll clerk position and testified that she was happy with her compensation at the time of
transfer.
The Board hired Plaintiff Carolyn Davis in June 1988 as a clerk/ typist. Ms. Davis has an
Associate of Arts degree from Jefferson State Community College. Prior to her employment with
the Board, Ms. Davis worked as a desk clerk, secretary, and an office worker with payroll duties
in the private sector. Ms. Davis worked for the Board as an intermediate clerk and a senior clerk
before becoming a payroll clerk in January 2003. Ms. Davis did not have any questions or
concerns about her salary when she assumed the position of payroll clerk.
2.

The Board’s Salary Schedule

The Board compensates the Plaintiffs, and all of its employees, in accordance with a
Board approved salary schedule. The salary schedule governs all Board employees and sets forth
the salary ranges for each job position, which are reflected as “steps” on the salary schedule.
(“Salary Schedule,” Doc. 16-7, at 5, et seq.). The Board has separate salary schedules for
“certified” versus “classified” employees. Certified employees are those employees that are
required to have a certificate issued by the Alabama State Department of Education, and all other
employees, including the Plaintiffs, are classified employees.
The Board alleges that placement on the salary schedule is determined by various factors,
“including, but not limited to, prior experience working for a public education institution.” (Doc.
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15, at 3). The individual Plaintiffs themselves are at different steps on the salary schedule
because they all have different years of working experience at the Board.
Craig Witherspoon, Superintendent of the Board, testified that “Placement on the salary
schedule is determined by various factors including, but not limited to, prior experience working
for a public education institution. It is the Board’s policy and practice to grant classified
personnel experience credit for previously working for a public education institution.” (Doc. 167, at 2). The Board’s Chief Financial Officer Arthur Watts, Jr. also testified that, “[I]t has been
the Board’s practice to recognize the years of experience of a classified employee whom had
worked in a public education entity.” (Doc. 16-5, at 6). Mr. Watts admitted in his deposition that
the salary schedule itself does not specifically state that a classified employee would receive
credit for past experience in public education. Id. at 5.
The Plaintiffs dispute that classified employees, like themselves, receive credit for
experience in public education. Neither the 2007 nor the 2009 salary schedule explicitly states
that classified employees will be given credit for prior public education experience, but they do
state that certified employees will be given credit for working in public education. (Doc. 16-7, at
813, 849). The Plaintiffs argue that this omission establishes that the Board’s policy is to not give
classified employees credit for past public education experience.
Superintendent Witherspoon testified that “[t]he Board does not give experience credit
for performing similar job duties while working in the private sector for purposes of placement
on the appropriate step of the Board’s salary schedule,” but that the Board does give experience
credit for “employment with the University of Alabama at Birmingham (‘UAB’) as prior
experience in public education.” (Doc. 16-7, at 3). Mr. Watts testified that experience in a public
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education entity affects the salary of both certified and classified employees but that classified
employees’ salary is not affected by the amount of education they have attained. (Doc. 16-5, at
5).
The Plaintiffs dispute that the Board does not give credit for education attained or past
experience in the private sector by pointing to the job posting for a Board payroll clerk. The job
posting lists the salary as a range from $28,788.50 to $38,890.30 with the caveat that “Actual
salary will be determined upon verification of experience & education.” (“Notice of Vacancy,”
Doc. 16-1, at 44). The Plaintiffs contend that because the job posting does not distinguish
between public education experience and payroll experience earned in the private sector that it
should be interpreted as including both kinds of prior experience. The Plaintiffs also contend
that because the job posting specifically says salary will be determined “upon verification of . . .
education” it should be interpreted as giving credit for any education attained by the classified
employee.
The parties do not dispute that several classified employees, both Caucasian and African
American, have received credit for salary schedule purposes for prior employment at UAB, and
specifically that Coretta Butler Densmore, Darlene Bufford, Veverly Locke, Ritter Posey, and
Griselda McCoy, all African American Board employees, received such credit for past
employment at UAB.1
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The Plaintiffs point out that “it appears [the African American employees who did
receive credit for past public education experience] did not receive credit for this experience until
after Plaintiffs filed their Complaint in federal court on November 30, 2011 . . . because
Defendant did not mention this fact in its letter to Plaintiff’s counsel on August 10, 2010 or in its
Position Statement it submitted on March 4, 2011 to the EEOC during its investigation.” (Doc.
22, at 4)(emphasis in original). While the Plaintiff is correct that the letter and position statement
do not contain this information, the lack of such information does not mean that the African
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3.

Alleged Comparator

The parties do not dispute that Melinda Nix, a Caucasian Board payroll clerk, received
credit for her prior working experience at UAB as a records management specialist for purposes
of the salary schedule. Ms. Nix has a high school degree and worked at UAB as a medical
records clerk from 1988 to 1994. Ms. Nix began working for the Board in August 1994 and was
promoted to payroll clerk in December 2002. After writing letters for several years about her
salary, Ms. Nix filed a charge of discrimination against the Board alleging race and gender
discrimination because other employees had received credit for prior experience at UAB and she
had not. As a result of settlement of the charge of discrimination, in 2009 the Board paid Ms. Nix
back pay and gave her credit for her UAB experience by placing her on a higher step in the salary
schedule.
4.

Alleged Disparate Compensation

In October 2007, Plaintiffs Ms. Curlee and Ms. Wyatt wrote a letter to Mr. Watts
requesting a review of their salary placement. Mr. Watts told Ms. Curlee that the Board did not
give credit for experience that was not in public education. On November 27, 2007 for
unexplained reasons, Ms. Curlee withdrew her request for review. The Plaintiffs contend that at a
meeting with all of the payroll clerks, Mr. Watts and other Board supervisors told the payroll
clerks that Ms. Nix’s placement on the salary schedule was changed by the Board because of a
“legal situation” and because of her previous experience working in public education at UAB.

American employees were not previously given credit for their past public education experience.
The absence of such information to the contrary does not mean the Plaintiffs’ assumption is fact.
Additionally, the information is irrelevant to the current action because the Plaintiffs in this case
indisputably do not have past public education experience.
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(Doc. 16-5, at 37). In her deposition, Ms. Curlee testified that she knew of several African
American payroll clerks who received credit for prior work experience in public education and at
UAB. (Doc. 16-1, at 21).
In February 2009, Ms. Wyatt again inquired about her placement on the salary schedule in
light of Ms. Nix’s increase, and she was told that Ms. Nix’s salary increased because of her prior
work experience at UAB. In her deposition, Ms. Wyatt testified that she knew of several African
American payroll clerks who received credit for prior work experience in public education and at
UAB. (Doc. 16-4, at 17).
Ms. Brown and Ms. Davis both testified that they became unhappy with their salaries
when they found out that Ms. Nix was doing the same job but getting paid more than they were.
Both Ms. Brown and Ms. Davis testified that to their knowledge no Board employee had ever
received credit for prior work experience for a similar job function that was not in public
education. (Doc. 16-2, at 18; Doc. 16-3, at 14).
B.

Procedural Background

All four individual Plaintiffs filed EEOC Charges of Discrimination alleging race
discrimination on January 4, 2011, and the EEOC issued notice of right to sue letters to all of the
Plaintiffs on September 1, 2011. The Plaintiffs then filed a two count Complaint in this court on
November 30, 2011. Count I alleges disparate treatment for race under Title VII of the Civil
Rights Act of 1984, 42 U.S.C. § 2000e, et seq. and Count II alleges race discrimination “in
violation of § 1981, via 42 U.S.C. § 1983.” (Doc. 1, at 9). After discovery, the Board filed a
motion for summary judgment, the Plaintiffs filed a response, and the Board filed a reply. The
court now considers the motion.
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II.

STANDARD OF REVIEW
Summary judgment allows a trial court to decide cases when no genuine issues of

material fact are present and the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56. When a district court reviews a motion for summary judgment, it must
determine two things: (1) whether any genuine issues of material fact exist; and if not, (2)
whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56). The moving party can meet this burden by offering
evidence showing no dispute of material fact or by showing that the non-moving party’s evidence
fails to prove an essential element of its case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322–23. Rule 56, however, does not require “that the moving party support
its motion with affidavits or other similar materials negating the opponent’s claim.” Id.
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not
significant unless the disagreement presents a “genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). In responding to a motion for summary
judgment, the non-moving party “must do more than simply show that there is some
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metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The non-moving party must “go beyond the pleadings and by [its]
own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’
designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324
(quoting Fed. R. Civ. P. 56(e)) (emphasis added); see also Advisory Committee Note to 1963
Amendment of Fed. R. Civ. P. 56(e) (“The very mission of summary judgment procedure is to
pierce the pleadings and to assess the proof in order to see whether there is a genuine need for
trial.”). The moving party need not present evidence in a form admissible at trial; “however, he
may not merely rest on [the] pleadings.” Celotex, 477 U.S. at 324. If the evidence is “merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249–50 (citations omitted).
In reviewing the evidence submitted, the court must “view the evidence presented
through the prism of the substantive evidentiary burden,” to determine whether the nonmoving
party presented sufficient evidence on which a jury could reasonably find for the nonmoving
party. Anderson, 477 U.S. at 254; Cottle v. Storer Commc’n, Inc., 849 F.2d 570, 575 (11th Cir.
1988). The court must refrain from weighing the evidence and making credibility
determinations, because these decisions fall to the province of the jury. See Anderson, 477 U.S.
at 255; Stewart v. Booker T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir. 2000); Graham v.
State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). “Even if a district court
‘believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant
summary judgment on the basis of credibility choices.’” Feliciano v. City of Miami Beach, 707
F.3d 1244, 1252 (11th Cir. 2013) (citing Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir.
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2006)). The court should not disregard self-serving statements made in sworn testimony simply
because they are self-serving at the summary judgment stage, and if the self-serving statements
create a genuine issue of material fact, the court should deny summary judgment on that basis. Id.
at 1253.
Furthermore, all evidence and inferences drawn from the underlying facts must be viewed
in the light most favorable to the non-moving party. Graham, 193 F.3d at 1282. The nonmoving
party “need not be given the benefit of every inference but only of every reasonable inference.”
Id. The evidence of the non-moving party “is to be believed and all justifiable inferences are to
be drawn in [its] favor.” Anderson, 477 U.S. at 255. After both parties have addressed the
motion for summary judgment, the court must grant the motion if no genuine issues of material
fact exist and if the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
III.

LEGAL DISCUSSION
The Plaintiffs allege in Count I that the Board engaged in unlawful race discrimination

under Title VII of the Civil Rights Act of 1984, 42 U.S.C. § 2000e, et seq. and allege in Count II
that the Board engaged in intentional and willful race discrimination in violation of 42 U.S.C.
§ 1981 via 42 U.S.C. § 1983. The court will analyze both Counts simultaneously because
“[w]here, as here, plaintiff[s] predicate liability under Title VII on disparate treatment and also
claim liability under sections 1981 and 1983, the legal elements of the claims are identical . . .
[and] we need not discuss plaintiffs[’] Title VII claims separately from [their] section 1981 and
section 1983 claims.” Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985).
One way to establish a claim of race discrimination is through direct evidence. Burrell v.
Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997). If the Plaintiffs cannot
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prove discrimination by direct evidence, as in this case, the Plaintiffs must establish a prima
facie case through the burden shifting analysis articulated by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Nevertheless, the “ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated . . . remains with the plaintiff.” Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 251-52 (1981).
To establish a prima facie case of intentional discriminatory compensation, the Plaintiffs
must establish that: (1) they belong to a protected class; (2) they received low wages; (3)
similarly situated comparators outside the protected class received higher compensation; and (4)
they were qualified to receive the higher wage. Lee v. Mid–State Land & Timber Co., 285 F.
App’x 601, 606 (11th Cir. 2008) (citing Cooper v. S. Co., 390 F.3d 695, 734–35 (11th Cir.
2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006)).
The parties do not dispute that all four Plaintiffs are African American and, therefore,
members of a protected class and that they all received a lower salary than Melinda Nix, a
Caucasian with the same position. The Board argues that the Plaintiffs cannot establish they were
qualified to receive a higher wage because the Plaintiffs are compensated in accordance with the
salary schedule. The Plaintiffs argue that the Board’s argument is flawed because it is based on
the “alleged practice of giving credit to classified employees who have prior education
experience.” (Doc. 22, at 12).
The court finds that what the Plaintiffs consider only an “alleged” practice is in fact a
practice of the Board, even if it is not specifically published in the salary schedule.
Superintendent Witherspoon and Mr. Watts testified that both certified and classified employees
with past experience at public education institutions, including UAB, received credit for that
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work in moving up the salary schedule. The Plaintiffs did not testify that they did not know of
anyone who had past public education experience who did not receive credit, and, in fact, Ms.
Curlee and Ms. Wyatt specifically testified that they knew of African Americans who had
received credit for past public education experience. The Plaintiffs cannot simply point to the
absence of a specific written policy stating that classified employees are given credit for past
public education experience as evidence that such a policy does not exist. The testimony of
Superintendent Witherspoon, Mr. Watts, and indeed the Plaintiffs themselves shows that such a
policy exists and is uniformly applied to classified and certified employees of all races, including
Ms. Nix, Coretta Butler Densmore, Darlene Bufford, Veverly Locke, Ritter Posey, and Griselda
McCoy.
The Plaintiffs’ argument that they should receive credit for past payroll-related work
experience or education also fails. Ms. Brown and Ms. Davis specifically testified that they knew
of no Board employees that received credit for past relevant work experience in the private
sector. Merely pointing to the job posting for a new payroll clerk that notes past experience and
education will be taken into account in determining a salary is not enough to show that the Board
should take into account past work in the private sector or education above and beyond that
which is required. Simply because the Plaintiffs do not like the Board’s policy of not considering
such factors does not mean that the policy is unfair and it certainly does not show that it is
discriminatory. “Federal courts ‘do not sit as a super-personnel department that reexamines an
entity’s business decisions,’”and the court will not make such a judgment in this case about
whether the Board’s policy is wise. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466 (11 Cir.
1991) (quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)). It is
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enough that the policy is not outwardly discriminatory and does not have a discriminatory effect.
While the Board does not specifically argue that Ms. Nix is not a valid comparator in this
case, the court simply notes that the Plaintiffs argument fails on this prong also. Ms. Nix does
have past experience working at a public education institution, UAB. The Plaintiffs do not
dispute such experience nor do they do dispute that none of them have any past experience
working in a public education institution. This difference is fatal to the Plaintiff’s case; without a
similarly situated Caucasian employee who is paid more than the Plaintiffs, their case must
certainly fail. Because the Plaintiffs have failed to show a prima facie case of discriminatory
compensation, the court need not address whether the Board’s legitimate reasons for its policy
decision are pretext for discrimination under the McDonnell Douglas burden-shifting framework.
IV.

CONCLUSION
Because no genuine issues of material fact exist and because the Plaintiffs have failed to

make a prima facie showing of discriminatory compensation under either Count of their
Complaint, the court will GRANT the Board’s motion for summary judgment and DISMISS the
case WITH PREJUDICE.
DONE and ORDERED this 28th day of June, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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